IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100019757 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was issued a general discharge and would like it upgraded to an honorable discharge.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 6 February 1980, the applicant enlisted in the U.S. Army Reserve for 6 years under the Delayed Entry Program for 180 days.  On 14 April 1980, the applicant enlisted in the Regular Army for a period of 3 years.  Upon completion of basic and advanced individual training he was awarded military occupational specialty 19D (Cavalry Scout).  The highest grade the applicant attained during this enlistment was specialist/pay grade E-4.

3.  On 6 May 1981, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  The punishment consisted of 15 days of correctional custody.

4.  On 22 March 1982, the applicant received NJP under Article 15, UCMJ, for making a false statement and destroying military property.  The punishment consisted of a reduction to private first class/pay grade E-3, forfeiture of $100.00 pay per month for 2 months (suspended), and restriction for 30 days (suspended).

5.  On 15 October 1982, he was referred to and enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation.  The initial screening process by the ADAPCP staff identified the applicant as a cannabis and cocaine abuser.

6.  On 6 November 1982, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  The punishment consisted of a forfeiture of $200.00 pay per month for 2 months, restriction for 45 days, and extra duty for 45 days.

7.  The applicant displayed a lack of interest and did not progress during his enrollment period in the ADAPCP and did not express any desire to improve.  It was felt that any further effort to rehabilitate the applicant would be unsuccessful. 
On 18 November 1982, his rehabilitation team determined his progress had been unsatisfactory and the ADAPCP staff declared the applicant a rehabilitation failure.

8.  On 7 January 1983, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, for alcohol or other drug rehabilitation failure.  The company commander stated the reason for his recommendation for elimination was the applicant's rehabilitative failure from the ADAPCP.

9.  On 18 January 1983, the applicant acknowledged receipt of the notification of separation action in accordance with Army Regulation 635-200, chapter 9.  He 
consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further indicated he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

10.  On 20 January 1983, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse rehabilitation failure and directed his service be characterized as under honorable conditions.  On 1 February 1983, the applicant was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for drug abuse rehabilitation failure in accordance with Army Regulation 635-200, chapter 9, with a character of service as under honorable conditions.  This form shows he completed 2 years, 8 months, and 29 days of active service.

12.  There is no indication in his records he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who has been referred to the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required.  An honorable discharge is required if restricted-use information was used.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality 
of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his general discharge be upgraded to an honorable discharge was carefully considered and found to be insufficient in evidence to support his request.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure with a character of service as under honorable conditions.  The evidence of record clearly shows the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant's overall quality of service during the period under review was not satisfactory and he is not entitled to an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the above, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X____  ____X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100019757



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ABCMR Record of Proceedings (cont)                                         AR20100019757



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